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Hollywood may at last be having its Napster moment — struggling against the video version of the digital looting that capsized the music business. Media companies say that piracy — some prefer to call it “digital theft” to emphasize the criminal nature of the act — is an increasingly mainstream pursuit.

Notice the use of violent weapons: guns and rocket launchers. Recall that they are attempting deprive someone of physical property. Physical property, unlike so-called intellectual property, can only be owned by one person at a time. Also, they take the crew hostage and hold them for ransom.

In contrast, sharing of digital goods increases the public good at no harm, on the margins, to the original owner. Remember kindergarten? Sharing is good!

The only plausible argument against sharing is that freely sharing may reduce the incentive to create content in the first place. But that argument only holds if (1) less entertainment content were created because of sharing and (2) the amount of lost value exceed the massive benefit to consumer of cheaply and easily accessing the content. As far as I can see, there has been no discernible decrease in the creation of good or crappy content in the five years or so.

Labels and studios may hurt from online sharing because it disrupts their control over distribution. But the artists? New artists that are creating the new content actually benefit from this alternative distribution mechanism that avoids the usual payola necessary through labels and studios. In fact, I think that digital distribution is creating a greater incentive to create content than previously. If we waste all our resources in a futile effort to protect vested interests, we are certainly going to get passed by other countries that side with the future and not the past.

Great news from apple. They are removing DRM (i.e., crippled music), moving to tiered pricing and allowing songs purchased over the air to be transferred back to a computer. I’ve recommended and wished that Apple would do this for a long time (as I’ve posted here before). I think these moves will be good for consumers and for apple.

For my friends and family, starting in April you should consider purchasing music from iTunes again. And don’t forget that Amazon also sells DRM-free music.

Imagine a site where you could download any album, old, new and even pre-released!, for free and in just seconds. Until last week, an invitation-only site called Oink was such a site. Oink was shut down last week by police in both the UK and Amsterdam. What was oink? Was it doing anything wrong? What is the impact of it being shutdown?

What was oink? I think one of the best accounts of oink comes from rock star Trent Reznor and Saul Williams of Nine Inch Nails’ fame.

The most interesting part is this:

“I’ll admit I had an account there and frequented it quite often. At the end of the day, what made OiNK a great place was that it was like the world’s greatest record store. Pretty much anything you could ever imagine, it was there, and it was there in the format you wanted. If OiNK cost anything, I would certainly have paid, but there isn’t the equivalent of that in the retail space right now.” …

“People on those boards, they’re grateful for the person that uploaded it — they’re the hero. They’re not stealing it because they’re going to make money off of it; they’re stealing it because they love the band. I’m not saying that I think OiNK is morally correct, but I do know that it existed because it filled a void of what people want.”

Inside oink had the largest library of digital music ever assembled, and unlike napster, it was all neatly organized. If nothing else, it shows how truly limited itunes really is–and you can see why it is intentionally crippled. It also demonstrates how well digital distribution can work. The record labels are not only leeches, sucking money for nothing, they in fact make distribution *worse*. They want to limit our choices. They want it to be hard and expensive to find and download music.

Was oink wrong? Under the premise that two wrongs don’t make a right, what oink was doing is wrong too. The site operators offer two defenses: 1) we don’t host any illegal content and 2) other sites like google link to illegal content. #1 is irrelevant, and #2 isn’t good enough (two wrongs don’t make a right) and US courts have distinguished between technology who principle purpose is infringing versus those that can just potentially be used for infringing purposes.

As a policy perspective, I think the pendulum has swung way too far towards the music industry. As I wrote about in this past article about itunes pricing, the public benefit of loosing copying rights far outstrips the public costs in reduced incentives. This is an important point to consider before you brand the tens of millions of file sharers as violent criminals (e.g., pirates). I think we should create a law to make oink and other forms of online distribution legal!

What’s the impact of it being shutdown? I am not sure. The music empire is fighting back, and shutting down this kind of site seems like a practical approach. Oink is rumored to have only about 200,000 members (and there are perhaps another couple million people worldwide who wished that they could join) who really care about this site. Unlike napster, oink hasn’t caught the public’s imagination.In the final analysis, my guess is that oink will be like the lost city of Atlantis. Like Atlantis, Oink is rumored to have been a magical place. But if you didn’t get to see it yourself, it probably sounds like an impossible myth.

I hate music labels, and their abuse of the courts gives law a bad name in my opinion. Yesterday, Jennifer Pariser, the head of litigation for Sony BMG, testified in a file-sharing case. On the stand, she was asked whether it was wrong for consumers to rip their CDs onto their iPods. Her answer:

“When an individual makes a copy of a song for himself, I suppose we can say he stole a song.” Making “a copy” of a purchased song is just “a nice way of saying ‘steals just one copy’,” she said.

I am not a lawyer, but I certainly hope the courts take a broader view of fair use than this music executive. Would the public good be served by such extreme protection that allowed the labels to dictate where, when and how we consume digital entertainment? I think entertainers need no further incentives, and such restrictions would only serve to harm the benefits of freedom that fair use provides.

It doesn’t surprise me that the labels are attacking CD ripping. Why? Because purchasing CDs and then ripping the songs to mp3s is the best and fairest way to consume digital music. I think it is better in most cases than purchasing online if you value fair uses like backing up your music without permission, etc.

Scott Reents sent me an email with just a single link, and man did it bum me out.

Lawrence Lessig is a famous constitutional law scholar who teaches now at Stanford Law School. For the last ten years, he has led the charge to redefine copyright in the Internet age as the founder of Creative Commons. Recently, all of us suffered a major setback when he lost a (literally) ‘Mickey Mouse’ Supreme Court case. And now this cause is losing its principal advocate, who has found a new windmill to tilt at: corruption. (He says: “I am 99.9% confident that the problem I turn to will continue exist when this 10 year term is over. But the certainty of failure is sometimes a reason to try.“)

For someone who is so admired and successful, I found Lessig’s inspirations really depressing for this decision in his announcement (“Required Reading“). His three inspirations are (1) obama; (2) gore and (3) an unnamed prominent republican who called him a “shill” for google.

Working backwards: first, please don’t accept the “shill” charge, Professor Lessig! Or tell me: how did you get duped into being an accomplice in corrupting the system? These charges really got to hurt an advocate who devoted a decade to an issue. I think that he should rather reconcile his views on the particular issue in question — network neutrality — where he should explain where his principled position does indeed differ from google’s largely correct but somewhat self-interested position.

Second, Al Gore is valiantly pursuing the global warming issue. But he is a sad hero: don’t you think he’d much rather have been President? And as a serious Washington insider for decades, it seems a little late and convenient to start blame the system now. It’s especially disingenuous because the environment also has its own interest groups that pray on emotional responses.

Third, he says that Obama is running for Presidency because of a ten-year “up or out” strategy. It’s a terrible parallel because Obama is riding at the top of his wave and Lessig is adrift after recent serious setbacks. So, claiming success (“we are going to prevail in these debates. Maybe not today, but soon.“) is decidedly weak. In fact, the weakness of this argument by such an admired thinker leads to question whether my own support of Obama is foolish too!

That said, Lessig is an *amazing* person so I wish him all the luck in the world in this new endeavor as well as those who will remain in the copyright arena. Lessig, here’s a message for you in the unlikely event you read this post: please understand that it is written with the same honest candor that your post was written and that I have the utmost respect for everything that you’ve accomplished. Corruption is a terrific new windmall to tilt at….good luck!

Google won’t permit me to use the word itunes in an ad I wrote to promote weiksner.com! Now, if google wants to sell exclusive rights to the word itunes, that seems like their decision to make. But does the law really prohibit me from advertising an article that talks about itunes? Isn’t that fair use?

Any lawyers out there, lemme know if I’m crazy or what.

Update: I tried to change to ‘i tunes’ and that didn’t work either, so I changed it to ‘ltunes’ and that passed the automatic legal sniffer test.

In a post last week (Chutzpah!), I wrote about the travails of Chris Knight. Chris ran for a seat on his local school board and lost. More notably, he made a funny campaign ad that was appropriate by VH1 for one of its shows. When Chris uploaded the ad on youtube, Viacom threatened him for copyright infringement despite having aired his entire creative work without permission! And youtube threatened to ban him from the site, as is its policy for any alleged infringing work.

So, he fought back with the help of the Electronic Frontier Foundation. And as this blog post reports, he won the battle and youtube sent him a very apologic note, wouldn’t you say?